Obouhov v. Lunn, 2018 ONSC 772

Obouhov v. Lunn, 2018 ONSC 772

CITATION: Obouhov v. Lunn, 2018 ONSC 772 DIVISIONAL COURT FILE NO.: DC-37/17 DATE: 20180206

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

WILTON-SIEGEL, MYERS, and CHARNEY JJ.

BETWEEN:

YAROSLAV OBOUHOV

Applicant

– and –

DENISE CHRISTINE LUNN and LEGAL AID ONTARIO

Respondents

Yaroslav Obouhov, in person

David Ziegler, lawyer for the Respondents

HEARD at Toronto: January 30, 2018

ENDORSEMENT

F.L. Myers J.

Background

1Mr. Obouhov is a lawyer. He seeks judicial review to require Legal Aid Ontario to enter his name on its duty counsel and certificate panels for the Central District. In his Notice of Application, he also sought an interim order prohibiting Legal Aid Ontario from considering his application dated May 9, 2016 pending the outcome of this application.

Procedural Facts

2Mr. Obouhov has no criminal record and no professional discipline history. On May 9, 2016, he applied to have his name entered on the Legal Aid criminal duty counsel panel and the criminal certificate panel for Durham. He says that he received no response to his application until December 8, 2016 when he was told that his application had been referred from the Central District to Toronto for review.

3Mr. Obouhov was previously employed by Legal Aid Ontario as a duty counsel. Legal Aid Ontario says that on June 17, 2015, it terminated Mr. Obouhov’s employment for cause following two investigations into allegations under Legal Aid Ontario’s Harassment and Discrimination in the Workplace Policy.

4On December 12, 2016, Legal Aid’s Toronto office delivered a lengthy Notice of Refusal to advise Mr. Obouhov that his name would not be entered on the panels as he had requested. The basis for the refusal was that Mr. Obouhov failed to meet Legal Aid Ontario’s applicable standards in relation to courtesy, civility, and good faith in his communications in that he used “language that is aggressive, abusive, threatening profane or degrading.”

5The Notice of Refusal advised Mr. Obouhov of his right, under ss. 28 (4)(b) and 25 (5) of O Reg 106/99 under of the Legal Aid Services Act, 1998, SO 1998, c26, to have a review of the refusal conducted by the President of Legal Aid Ontario or his designate upon a request made within seven days.

6On the same day, Legal Aid Ontario provided notice to Mr. Obouhov of a proposal to prohibit the entry of his name on any Legal Aid panels under s. 29 of the regulation. That provision authorizes the President to prohibit entry of a lawyer’s name on panels if there is reasonable cause to do so. The cause relied upon was the same conduct that led to the rejection of Mr. Obouhov’s applications.

7Mr. Obouhov was also advised that under s. 29 (2) of the regulation he had a right to request a hearing of the proposal to bar him from panels by delivering a request for a hearing within seven days.

8By letter dated December 23, 2016, Mr. Obouhov responded to the two notices by:

a. accusing the author of violating the Law Society of Ontario’s Rules of Professional Conduct;

b. denying the authority of the Director-General (Toronto, North Region) to deal with his applications;

c. denying that he violated Legal Aid Ontario’s Professionalism Policy;

d. claiming that the Director-General was in no position to judge whether his conduct was incompatible with professional and Law Society standards; and

e. asserting that the Director-General is in a position of conflict of interest because Mr. Obouhov is suing Legal Aid Ontario for wrongful dismissal.

9Mr. Obouhov declined to seek a further review of the rejection of his application or to ask for a hearing on the proposal to prohibit him from Legal Aid panels on the following basis:

While in the normal course, the presumption with respect to a statutory decision review process would typically operate to create a presumption of integrity of such process, in the instant matter, there is enough objectively discernable evidence to conclude that any review of your decision by LAO management would be tantamount to a farce.

At this time I am in the process of retaining counsel to assist me in bringing an application to the Superior Court of Justice for an order in the nature of mandamus and prohibition against legal Aid Ontario.

It is my view that given the history of bad faith on the party of Legal Aid Ontario as outlined above, we well as the apparent conflict of interest in which Legal Aid Ontario will find itself should the application proceed to a review under section 28, it is more appropriate to leave the matter in the hands of the Superior Court of Justice.

10As a preliminary matter, the panel heard submissions on the argument of Legal Aid Ontario that Mr. Obouhov should not be entitled to bypass the statutory scheme by seeking judicial review prior to availing himself of the alternative review processes that were open to him under the applicable regulation.

11Mr. Obouhov submits that under s. 25 of the statute, only the area director in the Central District to which he had applied was authorized to deal with his application. Therefore he does not recognize the validity of the decision rejecting his application that was purportedly rendered out of Legal Aid’s Toronto office. He seeks judicial review to obtain a mandatory order requiring the area director from the Central Division to render a decision on his applications.

12When asked about seeking an internal review of the decision that has been delivered as an alternative remedy under s. 28 of the regulation, Mr. Obouhov submits that he cannot utilize the review process as that would require him to recognize the validity of the underlying order. I do not agree. There is nothing preventing Mr. Obouhov from challenging the validity of the order that has been made in the review process on the basis that it was made in the wrong territorial jurisdiction. Mr. Obouhov cites no law to the contrary. Had Mr. Obouhov exhausted his remedies, the court would be informed by a decision of the President of Legal Aid Ontario on the question of territorial jurisdiction under the statute and any other more substantive matters that Mr. Obouhov may have chosen to raise.

13Moreover, Mr. Obouhov’s territorial concern cannot apply to the notice of proposal that was delivered to him under s. 29 of the regulation. The proposal to prohibit Mr. Obouhov from any panel was made by the President of Legal Aid Ontario or his designate. Mr. Obouhov has no territorial argument against this proceeding.

14Mr. Obouhov also argues that he should not be required to exercise his right to a hearing on the proposal as a precondition of seeking judicial review because Legal Aid Ontario is acting in bad faith. He supports this argument by pointing to the lengthy delay between the time that he applied to be added to the two panels and the ultimate rejection of his applications many months later. He also relies on the fact that in his wrongful dismissal lawsuit, Legal Aid Ontario is alleging that it had cause to dismiss him from his employment. Mr. Obouhov argues that Legal Aid has a conflict or is biased because it has a financial interest in upholding the rejection of his applications to further its defence of cause for dismissal in the civil litigation.

15This court has ruled previously that a claim of bias against a decision-maker below is not a sufficient basis to find that there are extraordinary circumstances that justify hearing an application for judicial review where the applicant has not availed himself or herself of available alternative remedies. The claim for bias and the related claim of bad faith can and should be raised with the President of Legal Aid Ontario first.

16In Spence v University of Toronto, 2017 ONSC 3803, Spies J. wrote:

17There is a longstanding principle that courts will not intervene through an application for judicial review during the proceedings of an administrative tribunal, unless there are exceptional circumstances; see Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 70 and Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at paras. 30-33.

18The Divisional Court has repeatedly held that applications for judicial review on the grounds of bias are premature if they are brought before the completion of the administrative proceedings. The Divisional Court has also held that it should have the benefit of a tribunal's full reasoning and final decision prior to entertaining any judicial review application founded on an allegation of a reasonable apprehension of bias.

19This issue was considered by the Divisional Court in Wong v. The Globe & Mail, 2013 ONSC 2993, 2013 ONSC 2993 (Div. Ct.). In that case the Court was dealing with an application for judicial review of an interim arbitration award which dismissed the applicant’s motions which included a motion that the arbitrator recuse herself on the grounds of reasonable apprehension of bias.

20Swinton J. on behalf of the Court held as follows:

38In Volochay, the Ontario Court of Appeal recently stated that issues characterized as questions of jurisdiction or allegations of a denial of procedural fairness are not automatically “exceptional circumstances” warranting early judicial intervention (at paras. 67 and 70). Moreover, if there is an adequate alternative remedy, the courts should not intervene before the administrative process has run its course.

39In the present application, we considered and ultimately determined the application on the merits, because there was an initial concern as to whether the arbitration process would be fatally flawed if the applicant were denied standing and the arbitration proceeded.

40However, having heard and rejected the applicant’s argument on standing, we have also concluded that the present application for judicial review is premature. In particular, it is premature to determine any allegation that the applicant will be denied natural justice if the proceeding continues with Union carriage. It is impossible to know at this early stage of the arbitration proceeding whether the Union’s representation of the applicant will be adequate or not. More importantly, the applicant has an alternative remedy through the OLRB to challenge the quality of Union representation, which she has not pursued.

41Similarly, the request for an order prohibiting the Arbitrator from proceeding because of a reasonable apprehension of bias is premature, especially given the fact that the applicant agreed in the MOA that the Arbitrator would arbitrate the dispute in question. The Court should have the benefit of the Arbitrator’s full reasoning and final decision prior to entertaining any judicial review application founded on an allegation of reasonable apprehension of bias (Air Canada v. Lorenz (T.D.), 1999 9373 (FC), [2000] 1 F.C. 494). [Emphasis added]

21I recognize that the comments of Swinton J. were in part on the issue of the applicant’s standing and as Mr. Singer argued, with respect to the issue of recusal, she was influenced by the fact that the applicant had agreed to the particular arbitrator. However, in my view the reasons on the recusal issue are clear that this issue was premature and that the court should have the benefit of the arbitrator’s full reasoning and final decision prior to entertaining any judicial review application founded on an allegation of reasonable apprehension of bias.

22Similarly in Pereira v. Hamilton (City) Police Service, 2017 ONSC 924, the Divisional Court considered whether or not judicial review of a decision of a hearing officer declining to recuse himself after finding the applicant guilty of certain charges was premature. Nordheimer J. on behalf of the Court found at para. 5 that it was.

23The Federal Court has also explicitly held that an allegation of bias, ipso facto, does not constitute exceptional circumstances justifying review before the tribunal has rendered its final decision; see Air Canada v. Lorenz, 1999 CarswellNat 1768 (Fed Ct – Trial Div) at para. 39. [Emphasis in original.]

17The soundness of the approach to decline to hear judicial review proceedings where an alternative remedy is available to the applicant even where he or she claims bias was reiterated by this court just last week. In, Major League Baseball v. Cardinal, 2018 ONSC 714, Kitely J. wrote,

26In Ontario College of Art v. Ontario (Human Rights Commission) Ms. Majumdu filed a complaint with the Human Rights Commission against the Ontario College of Art. The College wrote to the Commission, alleging that the human rights officer who inquired into the complaint did not conduct himself impartially. However, notwithstanding the College’s representations, the Commission decided to request that a board of inquiry be appointed. The College sought judicial review of that decision.

27The Divisional Court concluded that the College’s application was premature. In particular, the court stated that the board of inquiry had the jurisdiction to determine any of the issues that had been advanced, including the allegation of bias. The court emphasized “the need to avoid a piecemeal approach to judicial review” and that it is preferable to avoid delay and fragmentation by “allow[ing] … matters to run their full course before the tribunal and then consider[ing] all legal issues arising from the proceedings at their conclusion” when the court has the benefit of a full record.

18Mr. Ziegler confirms that if Mr. Obouhov exercises his right to a review and to a hearing of the proposal now, Legal Aid Ontario will not rely on the seven day time period to decline to undertake the hearings. Moreover, he agrees that the territorial jurisdiction argument can be raised and fully considered in the review of the refusal of Mr. Obouhov’s applications under s. 28 of the statute.

19It is not clear to us that the President of Legal Aid Ontario necessarily has a conflict of interest in hearing the two matters at issue. It is not clear that the conduct that led to Mr. Obouhov’s dismissal is necessarily the same conduct that is said to be relevant to his ability to serve on Legal Aid panels. We make no finding on Mr. Obouhov’s allegation of bad faith in the circumstances. The President of Legal Aid has not had the opportunity to consider whatever concerns Mr. Obouhov might choose to raise on a review of the refusal of his applications or at a hearing of Legal Aid’s proposal to prohibit him from serving on any panels. This court would benefit by having a complete record including the analysis of the President of Legal Aid Ontario or his delegate on whatever issues may be raised.

20The application is therefore dismissed as premature.

21At the end of the hearing, the court advised the parties of the outcome, heard costs submissions, and ordered Mr. Obouhov to pay costs to the respondents in the amount of $2,000 within 90 days.

F.L. Myers J

I agree

Wilton-Siegel J.

I agree

Charney J.